EMT v Commissioner of Victims Rights
[2021] NSWCATAD 39
•26 February 2021
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: EMT v Commissioner of Victims Rights [2021] NSWCATAD 39 Hearing dates: 5 February 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The decision of the Senior Assessor dated 5 November 2020 is affirmed.
Catchwords: Victims Rights and Support – administrative review – act of violence - grievous bodily harm
Legislation Cited: Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Administrative Decisions Review Act 1997Civil and Administrative Tribunal Act 2013
Cases Cited: AM v R [2012] NSWCCA 203
BJR v R [2008] NSWCCA 43
BWL v Commissioner of Victims Rights [2015] NSWCATAD 235
BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197 at [16]-[17]
CNB v Commissioner of Victims Rights [2020] NSWCATAD 31
CRT v Commissioner of Victims Rights [2017] NSWCATAD 174
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (2015) 89 NSWLR 707; 296 FLR 119; [2015] NSWSC 566
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at [39], 452
Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
R v Donovan [1934] 2 KB 498 at 509
R v Overall (1993) 71 A Crim R 170 at 173
R v Remilton [2001] NSWCCA 546
R v Shannon [2003] NSWCCA 106
R v Sumeo [2002] NSWCCA 271
R v Williams [2005] NSWCCA 14
R v Woodland (2007) 48 MVR 360; [2007] NSWCCA 29 at [35]
Singh v Director of Public Prosecutions (NSW) (2006) 164 A Crim R 284; [2006] NSWCCA 333
State Transit Authority of New South Wales v Chemler (2007) 5 DDCR 287; [2007] NSWCA 249 at [40]
Vann v Palmer [2001] ACTSC 12
Category: Principal judgment Parties: EMT (Applicant)
Commissioner of Victims Rights (Respondent)Representation: Solicitors:
EMT (Applicant in person)
P Srikanth, Victims Services (Respondent)
File Number(s): 2020/00335014 Publication restriction: A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.
REASON FOR DECISION
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These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 25 November 2020, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘EMT’.
Background
Application for Victims Support
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On 1 September 2020, EMT lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that she was the primary victim of an act of violence in the nature of sexual assault that was perpetrated on 1 August 2019, at Hurstville, New South Wales. EMT described the alleged act of violence by reference to a Police Report. I note that EMT made a statement in which she alleged as follows:
…3 About 1:10pm on Thursday 1st August 2019 I was at Hurstville Housing Commission office…
4. When I was in the office, I was walking towards the lounges to take a seat, so I could wait for my turn. As I was walking towards the lounges there was a male sitting down on one of them.
5. The male that was sitting down started talking to me. At the start I could not understand what he was saying, possibly because I was in shock.
6. As I got closer to the male I heard him say “You are a beautiful lady”. He started to lick his lips and look at me. He did this several times. The male then said, “I want to suck and lick your tits” and “they are beautiful”. The same male continued to make further comments towards me such as “I take you to the hotel and lick your pussy”. I could hear all these comments clearly and knew exactly what he was saying.
7. I said to the male “Why are you talking to me like this, do I know you?” He said “No”, because you are beautiful, I like it”. I said to him, “You are harassing me”. The male said “No, no harassment”.
8. I asked the male for his name and details, but he refused to give them to me. At this time, the lady working at the housing office, heard this part of the conversation.
9. This male made me feel scared. I started to shake and sweat. The comments made me feel sick to my stomach and I did not like the comments he was making, the male is not allowed to talk to me like this, it is inappropriate. I feel like I was too close to him he may have touched me inappropriately, as he continued to talk about my boobs.
10. I do not know this male. I have never seen him before…
11. I did not give permission for the male to speak to me like that.
12. I did not obtain a photo of the male, but I believe there is a CCTV footage inside the location.
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The application alleged that EMT suffered psychological/emotional injury as a result of the act of violence and that she sought a recognition payment, counselling and financial assistance for immediate needs.
Decision at first instance
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On 21 September 2020, an Assessor (Client Claims) issued a Notice of Decision, which determined that EMT was the primary victim of an act of violence that occurred on 1 August 2019 and held, relevantly:
Reports of police and court outcomes
10. I have reviewed the information obtained from NSW Police in relation to this matter which confirms that on the above mentioned date in August 2019, (EMT) was at her local Family and Community Services Office seeking assistance. After she had initially attended the counter and she was told by staff to take a seat and wait, the offender started making comments to her. The offender is described as an older man not known to (EMT) and continued to make sexual comments to her despite her requesting he stop several times, her moving away from him and becoming obviously distressed by the incident. (EMT) stated that she felt highly intimidated by the behaviour and comments made by the offender and later reported to Police. Whilst Police commenced an investigation in relation to this matter, which included taking a formal statement from (EMT) which I have read, it does not appear as though any criminal charges were laid against the offender.
Evidence of physical or psychological harm
11. Medical evidence has been provided via (EMT) from (name provided) medical centre… Dr (name provided) confirms that as a result of the violence, (EMT) continued to experience a range of psychological symptoms such as nightmares, fear, depression, anxiety and social isolation. These symptoms are consistent with a diagnosis of Posttraumatic Stress Disorder and can be considered as evidence of a psychological injury given the direct link to the act of violence…
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The Assessor determined that there was no reason to reduce or withhold the approval of victims support under s 44 of the Act. However, the Assessor approved a Category D recognition payment in the sum of $1,500 on the basis that EMT was the victim of an assault not resulting in grievous bodily harm and financial assistance in the sum of $5,000.
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I note that a copy of this decision was posted to EMT under cover of a letter from the respondent dated 21 September 2020. However, the date of posting this letter is not indicated in the evidence before me.
Internal review
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On 21 September 2020, EMT applied for an internal review of the Assessor’s decision .
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I note that in an undated statement (contained in the respondent’s bundle of documents, EMT alleged that she still lives in fear of men, and of seeing the offender again, she fears going out, shopping, walking in public etc. She said that she has seen a psychologist who wrote a report about her fears and that she has never recovered.
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On 5 November 2020, a Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that EMT was the primary victim of an act of violence and that she was eligible for a Category D recognition payment in the amount of $1,500. The Senior Assessor stated, relevantly:
Evidence of physical or psychological harm
17. General medical practitioner (name provided) has provided letters dated 31 August 2019 and 19 August 2020 in support of (EMT)’s application. According to the letters, (EMT) was the victim of an “unpleasant verbal encounter”, which caused her to become anxious and depressed. She reported her sleep being disturbed, feeling on edge and being afraid to go out in public due to the incident. (EMT) has been prescribed anxiety medication to treat her symptoms. These letters state that no past medical history is recorded.
18. Psychologist (name provided) has also provided a letter on behalf of (EMT), dated 13 July 2020 stating that she attended his practice on 6 July 2020, and described “an unpleasant encounter with a man that was of a sexual nature”. Dr (name provided) concluded that (EMT) would benefit from support to improve her symptoms.
19. Psychologist (name provided) has also provided a letter dated 3 September 2020, describing (EMT) as having suffered severe emotional trauma as a result of the incident, including anxiety, stress, mood swings, nightmares and flashbacks. The reasons for her attendance with two separate psychologists is not stated.
20. Most recently, Accredited Mental Health Social Worker (name provided) has provided a Certificate of Injury dated 13 October 2020. (She) reports that (EMT) described her encounter with the alleged offender and stated that she had not seen him since. She noted that (EMT):
…presented as agitated and directive, requesting me to write a report to assist with her review regarding the recognition payment. She was uncooperative re the counselling process, seemed reluctant to talk and seemed overly focused on me writing a report to assist her review. She refused to tell me about her family and other supports, and did not want to talk about the therapy she had engaged in to date… She seemed overly directive and focused on me providing report to enhance her chances of a higher recognition payment.
The description of symptoms seemed overly prolonged and pronounced to be attributable to the one attempted assault, and I speculate that there may be other factors at play, eg prior incidents but the client states that this is not the case and refused to talk about her other trauma or mental health history.
I was unable to get the client to cooperate to provide a functional mental health assessment but I believe that there are pre-existing factors that she was unwilling to disclose given her unusual, directive and almost aggressive presentation.
FINDINGS
21. I note the findings of Assessor Devine, and the description of the incident contained in the statement (EMT) gave to police on the day of the assault and am satisfied that there is sufficient evidence to establish that (EMT) was the victim of an act of violence. I accept that the medical and counselling evidence produced verifies that the incident caused (EMT) psychological harm. At issue is whether the injury (EMT) sustained is grievous bodily harm, as this would entitle her to a higher category of recognition payment. A grievous psychological injury may be established where the act of violence has caused severe and lasting trauma symptoms; causation can be assessed with reference to the person’s functioning before and after the act of violence.
22. Since the incident (EMT) has been to see a general medical practitioner, two separate psychologists, and a mental health social worker about her psychological symptoms, and they all confirm she suffers symptoms of trauma based on her disclosures to them. The difficulty with the medical and counselling evidence produced is that it does not provide any context or background for(her) prolonged symptoms. When this information was sought by (the mental health social worker), (EMT) refused to provide any information which would enable a full and proper assessment to be made. Given the nature of the incident, a one-off verbal encounter with an unknown male, and (EMT)’s refusal to provide further information about herself, (the mental health social worker) formed the view that there were likely to be ither factors which contributed to the severity and prolonged nature of (EMT)’s reported symptoms.
23. Accordingly, based on the available evidence, I find I am unable to establish whether (EMT) has sustained psychological injuries from the act of violence that are so severe as to be in the nature of grievous bodily harm. Noting (EMT)’s presentation to (the mental health social worker), I find the severity of (her) psychological symptoms are likely to have their provenance in factors other than the assault…
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Accordingly, the Senior Assessor approved a category D recognition payment.
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I note that a copy of the Senior Assessor’s decision was posted to EMT under cover of a letter from the respondent dated 4 November 2020. However, the date of posting is not indicated in the evidence before me.
Application for administrative review
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This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
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The current application for administrative review raised the following ground:
The grounds insufficient compensation for the loss suffered because I am too scared from any man wants to talk to me. I live in fear, nightmare. I suffered from the offender. Physical & psychological injuries. He damage me from inside that’s why I disagree for the R.P. Please considering my appeal.
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Senior Member McAteer conducted a directions hearing on 15 January 2021, during which EMT appeared in person and Ms K Douch appeared for the respondent. The respondent had filed documents provided under s 58 of the ADR Act and the Senior Member ordered EMT to file and serve any further medical report and evidence that she wished to obtain on or before 25 January 2021. He also ordered the respondent to file and serve any submissions on or before 2 February 2021.
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On 18 January 2021, EMT filed a further report from the Mental Health Social Worker dated 16 January 2021. This is addressed to “The Appeals Tribunal” and is in the following terms:
I am writing in my capacity as Victims of crime counsellor to support (EMT) in her appeal process.
I have explained to (EMT) that I can only give a very limited opinion about her current mental status as she has been unwilling to engage in the assessment process, and her current severe depression does not seem congruent with the trauma she reports.
(EMT) reports severe anxiety and incapacity to function as she used to in daily life since she was approached by a man who made lewd suggestions to her. She reported this matter to the police and to her doctor who has placed her on “stress” medication. She reports being unable to engage with men since this incident, or to take care of her appearance.
Given (EMT)’s severe reaction to the trauma incident I attempted to understand her past vulnerabilities and childhood history, but she refused to engage in that process. She reports that all her symptoms are as a result of the recent traumatic experience.
In my opinion severe responses to an event that was short-lived and did not involve an actual physical/sexual assault, and that haven’t been repeated, may indicate the probability of past complex trauma that has been reactivated. As I have no insight into (EMT)’s past, and with an understanding that sometimes such past events are not remembered, I am unable to provide an informed opinion.
I can speculate that (EMT) may have been triggered by her recent trauma, which has dysregulated and stirred up repressed memories, or she may have some age-related early dementia process unfolding in association with her current stress from the event.
In summary (EMT) is in extreme discomfort from her trauma symptoms and needs support to recover her mental equilibrium. She has a strong opinion regarding the origin of her dysregulation but I am less convinced that her encounter is the sole cause of her very real distress.
I would welcome working further with her on this when she is open to allowing therapeutic intervention.
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The respondent filed written submissions on 4 February 2021.
Consideration
Act of Violence
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Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
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“Act of violence” is defined in s 19 (1) of the Act as follows (relevantly):
(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…
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The onus is on EMT to prove her allegations of assault on the balance of probabilities. There is no dispute that she was the primary victim of an act of violence that occurred on 1 August 2019. Based on the available evidence, I am satisfied that she has established that she was a primary victim of an act of violence in the nature of an assault, but I am not satisfied that she was the victim of a sexual assault, as alleged in the application for victims support.
Injury
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Section 20 of the Act defines “injury” as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”
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The Respondent does not dispute that EMT was the primary victim of an act of violence and/or that she suffered a psychological injury as a result of it.
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However, the respondent determined that the act of violence was in the nature of an assault that caused actual bodily harm. This decision appears to be based upon the decision in R v Donovan [1934] 2 KB 498 at 509, which is authority for the proposition that actual bodily harm means “any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." In making that determination, it placed significant reliance on EMT’s prior history of psychological trauma.
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In its written submissions dated 1 January 2021, the respondent maintained its view that EMT was not eligible for a higher category of recognition payment because the evidence did not establish on a balance of probabilities that she suffered grievous bodily harm as a result of the act of violence. It argued that the decision of the Senor Assessor should be affirmed.
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The respondent referred to the Tribunal’s decision in BMF v Commissioner of Victims Rights [2020] NSWCATAD 97 at [54] (emphasis added):
In the current claim I take the meaning of the words at the end of s 39 (2) (b) (ii) ‘as a result of an act of violence’ to mean: as a result of the act of violence upon which the relevant claim being assessed is based.
Whilst I might find on the available evidence s 19 (1) (a) and (b) have been met, s 19 (1) (c) concerns whether the applicant has been injured as a result of the act of violence. The definition of injury in Part 4 Division 1 of the Act is as follows under s 18:
Injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.
Reading s 39 (2) (b) (ii) and 19 (1) (c) together, it is clear that the legislature requires a recognition payment to only be made when there is independent professional evidence indicating that injury has arisen directly as a result of the act of violence.
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The respondent also argued that ‘grievous bodily harm’ covers the most serious types of injury and has been defined by the common law as ‘really serious harm’: DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331. Some guidance regarding the meaning of ‘grievous bodily harm’ may be obtained from the decision of the Court of Criminal Appeal (Beazley JA, as her Honour then was, Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209 (Haoui) at [138] – [142]:
138 The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.
139 However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm” but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12…
142 In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.
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The respondent argued that in the matter of CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, the Tribunal applied the above principles and held (at [23]-[24]:
While I accept that the act of violence had a significant impact upon CZU and that she has required psychological treatment for her depressive disorder and symptoms of post-traumatic stress, there is no evidence before me that supports a finding that her condition required either treatment by a specialist psychiatrist or medication. I also note that while the treating psychologist referred to symptoms of post-traumatic stress, she did not formally diagnose post-traumatic stress disorder.
As a result, I am satisfied to the required standard that the act of violence resulted in actual bodily harm and that CZU is eligible for a Category D recognition payment pursuant to s 35 (4) of the Act.
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At the hearing on 5 February 2021, EMT maintained her denial on any prior psychological or psychiatric symptoms and argued that as a result of the act of violence, her life is now “upside down” and she “cannot wear any nice things” because she is scared to do so. The Tribunal asked EMT why she refused to provide a full medical history to the Mental Health Social Worker upon whose reports she relies, when this would have enabled the report writer to provide a more detailed report in support of her claim. She replied to the effect that her past life has nothing to do with her current situation.
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With respect to the respondent’s reliance on the decision in CZU v Commissioner of Victims Rights, I note that the treating general practitioner opined that EMT suffered post-traumatic stress disorder and prescribed medication for anxiety. However, neither of the psychologists nor the Mental Health Social Worker formally diagnosed PTSD and I am not satisfied that the available evidence provides a safe climate for accepting the diagnosis of PTSD as a result of the act of violence.
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Based upon the available evidence, I am not satisfied that EMT’s psychological injury can properly be considered as being “really serious”. It therefore follows that she is eligible for a Category D recognition payment under s 35 (4) of the Act.
Section 44 of the Act
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I am required by the Act to consider whether there are any factors under s 44 of the Act that would result in me either declining to approve victims support to EMT or reducing the amount of victims support that is payable to her. Based upon the available evidence, I am satisfied that there are no such issues in this matter.
Orders
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The decision of the Senior Assessor dated 5 November 2020 is affirmed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 26 February 2021
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